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ARTICLE 19 strongly condemns the actions of Malaysia and Saudi Arabia in the case of Hamza Kashgari, the Saudi journalist. On 12 February 2012, he was deported from Malaysia to Saudi Arabia to face charges of apostasy for a series of tweets about the prophet Mohammed. We call on the Saudi authorities to immediately release Kashgari and drop any charges of apostasy or blasphemy against him.

Kashgari's detention and prosecution for apostasy or blasphemy by the Saudi authorities contravenes international law on the right to freedom of expression. His deportation by Malaysia and the injunction of the Malaysian High Court issued on the day of extradition are also in violation of international law on "non-refoulement"[i].

The events

On 4 February 2012, Hamza Kashgari, a 23-year-old Saudi journalist for Al-Bilad newspaper in Jeddah, published a number of tweets reflecting an imaginary conversation with the prophet Mohammed. The tweets demonstrated both his admiration of and his trouble in understanding the prophet. Kashgari's tweets included the comments: "I have loved things about you and I have hated things about you and there is a lot I don't understand about you" and "I will not pray for you."

The tweets caused popular outrage: within a day of being posted, there were more than 30,000 negative responses, including some calling for his death.

Kashgari then deleted the tweets, stating that he had no idea that they would cause such a negative reaction and that he was being made a scapegoat for a "larger conflict".

Following the declaration by official clerics that Kashgari was guilty of apostasy, a crime which carries the death penalty, the Saudi Arabian authorities issued a warrant for his arrest.

On 7 February, Mr Kashgari fled Saudi Arabia.

Two days later, he was detained at Kuala Lumpur International Airport by Malaysian authorities while in transit to New Zealand where he intended to seek asylum.

The Saudi Arabian authorities then sought Kashgari's deportation from Malaysia.

On 12 February, his legal team obtained an injunction preventing his deportation. Unbeknown to them, Kashgari had already been deported by the Malaysian authorities, who later claimed they had not received the court order.

There is no extradition treaty between Malaysia and Saudi Arabia, despite claims by the Malaysian Minister of Home Affairs, Hishammuddin Hussein, that there is a "long-standing arrangement" between the states. The minister further justified Malaysia's decision to deport Kashgari on the grounds of national security and counter-terrorism arguments. He said that the country should not "be seen as a safe country for terrorists [or] those who are wanted by their countries of origin ... [or] as a transit country".

ARTICLE 19's concerns

In ARTICLE 19's opinion, the treatment of Kashgari by the state authorities of Saudi Arabia and Malaysia – specifically his prosecution for apostasy by the Saudi Arabian authorities and his detention and deportation by the Malaysian authorities – is in clear contravention of international law on the right to freedom of expression. It also contravenes other rights: most notably, the principle of non-refoulement, which is itself implicit in the prohibition of torture and other cruel, inhuman or degrading treatment or punishment.

ARTICLE 19 notes that neither Saudi Arabia nor Malaysia has signed or ratified the International Covenant on Civil and Political Rights (ICCPR), the principal international instrument protecting all these rights. Nevertheless, these states need to respect human rights, particularly the right to freedom of expression and the absolute prohibition on torture and cruel, inhuman or degrading treatment or punishment. These rights are protected by the Universal Declaration of Human Rights, part of customary international law.

Under international law, the principle of non-refoulement is an inherent and indivisible part of the prohibition on torture and cruel, inhuman or degrading treatment or punishment.[ii] The absolute prohibition on torture not only imposes on states a duty not to subject people to torture or other ill-treatment, but also a positive obligation to "prevent such acts by not bringing persons under the control of other states if there are substantial grounds for believing that they would be in danger of being subjected to torture".[iii] Torture is widespread in the criminal justice system of Saudi Arabia. Furthermore, as highlighted by both the European Court of Human Rights and the South African Constitutional Court, the death penalty itself can constitute a violation of the prohibition on torture.[iv]

This case further highlights the fact that Saudi Arabia and Malaysia lag far behind the vast majority of states which have ratified international human rights treaties providing a minimum floor of rights for individuals. Under international law, the act of ratification means that a state is bound by the treaty as a matter of international law and also obliged to implement its provisions through domestic law and policies.[v]

The ICCPR now binds 167 States and therefore Saudi Arabia and Malaysia are amongst a small minority of states which have not accepted its terms as legally binding within their jurisdictions. Furthermore, both states have failed to sign or ratify the Convention on the Status of Refugees of 1951, which binds 144 States, and only Saudi Arabia has acceded to the Convention Against Torture (on 23 September 1997), which binds 150 States.

Ratify the ICCPR and other international treaties protecting freedom of expression and other rights, in particular the 1984 Convention Against Torture, the 1951 Refugee Convention and the 1967 Protocol relating to the Status of Refugees.

Malaysia to:

Ensure that its deportation procedures are in line with international human rights law

Ensure that asylum seekers are not returned to states where they may face a real risk of the death penalty or torture

Ratify the ICCPR and other international treaties protecting freedom of expression and other rights, in particular the 1984 Convention Against Torture, the 1951 Refugee Convention and the 1967 Protocol relating to the Status of Refugees.

The international community, including the Organization of Islamic Cooperation, the European Union and the United States, to:

Condemn Malaysia for having deported Kashgari in contravention of international law

Condemn Saudi Arabia for its prosecution of Kashgari for apostasy

Strongly urge both states to ratify the ICCPR and other international treaties protecting human rights.

[iii] Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, para 27, delivered to the General Assembly, U.N. Doc. A/59/324 (1 September, 2004).